Decision #38/14 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was overpaid $16,660.00 with respect to his permanent partial impairment award. A hearing was held on February 19, 2014 to consider the matter.Issue
Whether or not the worker is required to repay an overpayment of $16,660.00 in relation to the compensable injury of December 28, 2011.Decision
That the worker is required to repay an overpayment of $16,660.00 in relation to the compensable injury of December 28, 2011.
Decision: Unanimous
Background
The worker has two claims with the WCB for injury to his right wrist which occurred at work in July 2004 and December 2011. With respect to his 2004 claim, the worker was awarded a permanent partial impairment award ("PPI") of 14% on October 20, 2010. With respect to his December 2011 claim, the worker's PPI award was calculated at 15%.
On September 18, 2013, the worker was advised by Compensation Services that he had incurred an overpayment of $16,660.00 based on the PPI awards he received for the same body part, his right wrist. On his 2004 claim he was awarded a 14% award for his right wrist and in 2011 he was awarded another PPI for his right wrist of 15%. The difference between his previous rating of 14% and the current rating of 15% was 1% or $1190.00.
On October 15, 2013, a worker advisor appealed the above decision to Review Office. The worker advisor referred to various memorandums and letters on file to support that the $16,666.00 overpayment resulted from a WCB administrative error and not the worker's error. Therefore the worker should not be responsible to repay the overpayment.
On November 14, 2013 Review Office determined that the worker did not have a PPI rating on his 2011 claim and that the worker's PPI rating on his 2004 claim was 15% effective August 29, 2013. It also determined that the worker was required to repay the overpayment of $16,660.00 on his 2011 claim.
Review Office took note that a WCB medical advisor reviewed the file on August 15, 2013 and stated:
The recent surgery (CMC) joint fusions would not result in an increase of the PPI (rating).
Review Office discussed the worker's claim with a WCB medical advisor on November 13, 2013. The medical advisor indicated that the additional 10 degrees loss of range of motion ("ROM") of the worker's wrist found when he was examined on August 29, 2013 (from a 225 degree loss to zero ROM) was more likely than not the natural progression of the worker's wrist fusion done as a result of his 2004 injury. It agreed with the medical advisor's opinion and considered that the worker did not have a PPI in respect of his 2011 injury.
Review Office further indicated that the 15% rating determined on August 29, 2013 was entirely accounted for by the worker's 2004 injury. The increase of 1% entitled the worker to an award of $1,140.80. As the worker had already received $1,190.00 in respect of it on his 2011 claim, it followed that he was overpaid $49.20. As this overpayment was the result of a reconsideration by Review Office, the worker was not required to repay it.
Regarding the overpayment of $16,600.00, Review Office agreed that the overpayment resulted from a WCB error and that WCB Policy 35.40.50, Overpayments of Benefits, is used to determine whether repayment should be made. Review Office felt that the second error made by the WCB was "so material or obvious that the worker should have recognized it and reported it to the WCB." Review Office felt that the worker should have known that he was not entitled to two payments for the same permanent impairment and therefore the worker was required to repay the $16,600 overpayment. On November 15, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "WCA").
Subsection 109.2 of the WCA provides that where a worker receives an overpayment of compensation, the WCB may recover the overpayment as a debt due to the board. The Board of Directors established WCB Policy 35.40.50, Overpayments of Benefits, which sets out the principles to guide the WCB in recovery of overpayments from workers.
WCB Policy 35.40.50, Overpayments of Benefits deals with situations where the WCB may and will seek recovery of overpayments. Part C, 3 of that policy provides that all overpayments will be pursued for recovery unless:
“(i.) they resulted from an adjudicative reversal or a reconsideration decision by the WCB, or from a decision of the Appeal Commission; or
(ii.) they resulted from either an administrative error by the WCB, or the receipt of incorrect information from an employer that affected eligibility or the amount payable. The exception to this provision is that the overpayment will be pursued if the WCB considers that the error or incorrect information was so material or obvious that the worker should have recognized it and reported it to the WCB; (underlining added) or
(iii.) new information relevant to entitlement was known to the worker and was not provided to the WCB, but it resulted in an overpayment of less than $50; or
(iv.) the amount receivable is not cost-effective to pursue; or
(v.) recovery of the overpayment, in whole or in part, would create financial hardship for the worker and/or the worker’s dependants; or
(vi.) the worker has died, unless it is clear that the estate has sufficient funds available to repay the overpayment; or
(vii.) the overpayment occurred more than three years prior to its discovery by the WCB.”
This appeal deals with an overpayment related to the payment of a permanent partial impairment (PPI) award to a worker.
Worker's Position
The worker was self-represented at the hearing.
He stated that he advised the case manager that he received a PPI for his wrist on his prior claim. He also said that he advised his vocational rehabilitation counselor and the WCB medical advisor who examined his wrist that he received a PPI for his wrist on a prior claim.
The worker said that when the case manager informed him that he was eligible for a PPI, he told her that he already received a PPI for his wrist on his 2004 file. He said this conversation occurred in May 2013. When the panel noted that there is no note on file confirming this discussion in May 2013, the worker commented that not all calls or things that are discussed during calls are recorded, therefore he is not surprised that there is no note to confirm this discussion.
The worker described the surgery and treatments he received after his 2011 injury. He indicated that he thought the surgeries were due to his 2004 accident and not a new accident. He said that the 2011 injury was just an irritation of his 2004 injury which had not healed properly. When his case manager told him he was eligible for a PPI on the 2011 claim he was "dumfounded."
In answer to a question about his reaction when he was told about the amount of the PPI, he said he was shocked. He said that he responded "are you sure" to which the case manager answered "Yes, we reviewed all the paper work."
In closing, the worker said that if he had known the calculation was wrong, he would not have taken the payment. He did not want to be in this situation. He said that he did his due diligence letting the WCB know about the prior PPI and thought that WCB would know what it was doing. He feels he did what he could to have the WCB check its file and relied on the WCB to make the right calculations.
Employer's Position
The employer was represented by its assistant manager.
The employer representative stated that the employer believes the worker's wrist injury was pre-existing and was not related to the worker's employment with the employer. She offered the opinion that it was not obvious that the cheque amount was incorrect and that the worker should not be required to repay the amount. She said that at least 4 to 5 people at WCB had their hands on the cheque.
Analysis
The panel finds that the WCB made an administrative error which resulted in an overpayment to the worker. The WCB paid the worker for a 15% impairment of his right wrist, when he had already, in 2010, received a PPI award of 14% for the impairment. The panel also finds that the correct amount of the payment in 2013 is 1% which is attributable to the increase in impairment found by the WCB medical advisor and related to the compensable injury of December 28, 2011.
The issue before the panel is whether the worker is required to repay the overpayment of $16,660.00. In deciding this appeal the panel must apply the WCB Overpayments Policy. This Policy sets out limited circumstances where overpayments will not be pursued. For the worker's appeal to be successful, the panel must find that the circumstances of this case fall within these limited circumstances.
The worker argued that the overpayment he received is not recoverable as it fell within Part C (3) (ii) of the policy. This section provides that overpayments resulting from an administrative error by the WCB are not pursued for recovery in certain cases. The panel notes this section is limited and does not apply to cases where the WCB considers that the error or incorrect information was so material or obvious that the worker should have recognized it and reported it to the WCB.
The panel has considered the worker's position but is not able to find that his case meets the limited circumstances outlined in Part C (3) (ii). The panel has considered the worker's evidence, reviewed the claim file and finds that the error was so material and obvious that the worker should have recognized it and reported it to the WCB. This is particularly the case as the worker had already received a PPI for a 14% impairment of his right wrist in 2010 and approximately three years later was assessed a 15% impairment for the same wrist with minimal changes in the wrist. He should have recognized that he is not entitled to two payments for the same impairment. As well he should have recognized that the amount of the payment was not in proportion to the change in his wrist over the three year period. He should have recognized the amount of the award was out of proportion to the change in his condition.
The worker acknowledged at the hearing that he was "dumbfounded" when told he would get a PPI for the wrist. In answer to a question from the panel he said he was "shocked" by the amount of the payment. This supports the panel's finding that the worker should have and, in this case, likely did recognize that an error had been made. He also told the panel that the WCB mixed themselves up in dealing with the injury as a new claim.
The worker told the panel that he did his "due diligence." He said that he advised the case manager, vocational rehabilitation consultant and WCB medical advisor that he received a PPI for this wrist in 2010. As well, he reports that when he was advised of the amount of the PPI award he asked the case manager "Are you sure?"
The panel accepts that the worker did advise the WCB of the prior PPI but this occurred before he was re-assessed and advised of the PPI. At the time he was told about the new PPI and the amount of the PPI award, he did not refer to the previous PPI, question the amount or indicate there might be an error. He simply asked "are you sure." He did not take the next step required under the policy of telling the WCB that the amount seemed incorrect. File information shows that he did not wait for the WCB to verify the calculations. Instead, he asked to pick up the cheque and cashed it immediately. The panel does not find that his actions satisfy the requirement to report the error to the WCB and as such do not fall within the exception to recovery set out in the policy. The panel finds that the worker's actions were not dishonest, but that he seemed willing to take advantage of the WCB's obvious error.
The panel notes that worker indicated the requirement to repay the overpayment would create a hardship. The panel notes that the Overpayment Policy has provisions to deal with hardship and that the worker may wish to consider this. This issue is not before the panel.
The worker is required to repay the overpayment. The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerR. Koslowsky, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 1st day of April, 2014